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Henao v. Hilton Resorts Corp.

United States District Court, D. Hawaii

February 13, 2018

JOSE HENAO, Plaintiff,


          Derrick K. Watson United States District Judge.


         Hilton Grand Vacations Company, LLC (“Hilton”) seeks dismissal of Plaintiff Jose Henao's employment discrimination and retaliation action on the basis of res judicata, or claim preclusion, in light of the Court's recent grant of summary judgment in favor of Hilton in a separate action filed by Henao. In both cases, Henao alleges that Hilton unlawfully terminated or suspended his employment in July 2016 because he complained about age discrimination against “older sales agents.” He contends, however, that he was not required to include his present claims for violations of the Age Discrimination in Employment Act (“ADEA”), U.S.C. § 621 et seq., in his earlier case because he had not yet received a Notice of Right To Sue from the Equal Employment Opportunity Commission (“EEOC”), and because his ADEA claims are distinct from his previous cause of action under the Hawaii Whistleblower Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62. Henao is incorrect. Because the requirements of claim preclusion are met, and Henao offers no compelling reason for failing to bring his present ADEA claims in his prior case, the Court GRANTS Hilton's Motion to Dismiss.


         Henao was hired as sales agent for Hilton in 2012, and two of his civil actions arising from his employment there have been assigned to this Court. The Court first outlines the procedural background and factual allegations in the prior case, Civil No. 16-00646 (“First Case”), and the instant case, Civil No. 17-00746 (“Second Case”), in light of Hilton's request to dismiss the Second Case based upon the claim preclusive effect of summary judgment granted to Hilton in the First Case.[1]

         I. Henao's First Case Against Hilton

         On November 2, 2016, Henao filed a Complaint in state court alleging a single count of retaliation in violation of the HWPA based upon his “reports of violations of age discrimination laws and other laws.” Compl. ¶ 12, Dkt. No. 1-1 in Civ. No. 16-00646. The Complaint in the First Case alleges that after he complained on April 8, 2016 “to management about unlawful age discrimination because the Director of Sales had been terminating older sales agents and replacing them with younger sales agents, ” Compl. ¶ 8, and “also complained about management taking sales commission from sales agents to which management was not entitled, ” Compl. ¶ 9, he “was terminated on July 4, 2016” in retaliation “for complaining about the aforesaid violations of law.” Compl. ¶¶ 7, 10.

         Hilton removed the case to federal court on December 6, 2016. Notice of Removal, Dkt. No. 1 in Civ. No. 16-00646. According to Hilton, Henao was not terminated on July 4, 2016 or on any other date, remains employed as a sales agent, and is presently listed on Hilton's employee ledger as being out on personal leave status. Decl. of Julia Montenegro ¶ 4; Dkt. No. 18-1 in Civ. No. 16-00646.

         By early 2016, Henao complained that Hilton Sales Supervisor, Joshua Kannel, “was discriminating based upon age by firing the older sales agents.” Decl. of Jose Henao ¶ 3; Dkt. No. 21-1 in Civ. No. 16-00646. He also complained to both Kannel and Julia Montenegro, a senior Hilton human resources manager, that Hilton's minimum wage recovery draw program “resulted in illegal deductions from [Henao's] pay in violation of law[.]” Henao Decl. ¶ 2. Henao claims that on July 4, 2016, because of his outspoken complaints, he was told by Kannel and Supervisor Bryan Economou to “‘pick up [his] personals and go home'. [He] was terminated.” Henao Decl. ¶ 4. Henao “asked for clarification and was told ‘the termination is final'.” Henao Decl. ¶ 5.

         Hilton denies that Henao was “terminated” at any time on July 4, 2016 or thereafter. Instead, according to Hilton's Montenegro, “[o]n July 4, 2016, Mr. Henao was advised that he had not met written and objective [sales] performance criteria for his job position and . . . that [Hilton] HR would be contacting him shortly to discuss next steps. Montenegro Decl. ¶ 6.a. On July 6 and July 8, 2016, Hilton received notes from Henao's doctor, and placed him on leave for medical reasons, retroactively from July 1 until July 26, 2016. Montenegro Decl. ¶ 6. Hilton HR “decided not to take any action with regard to Mr. Henao's past poor job performance and to continue [his] employment upon his return from [Family Medical Leave Act (“FMLA”)] leave.” Montenegro Decl. ¶ 6.e. At his request, Hilton HR met with Henao on July 19, 2016 to discuss his employment status.

         Montenegro describes the meeting, in part, as follows-

During that meeting, Mr. Henao stated that he no longer wanted to work for [Hilton] and asked that he be terminated so that he could collect unemployment insurance for the remainder of 2016 (at which time he already was planning to retire). [Hilton] HR declined to terminate Mr. Henao's employment as requested, informed Mr. Henao that he was on FMLA leave, and showed him his tentative work schedule for his return to work upon the expiration of his FMLA leave. Mr. Henao repeatedly stated that he either deemed himself terminated or wished to be terminated. With equal frequency, [Hilton] HR told Mr. Henao that he was not terminated and that [Hilton] would not be terminating his employment as requested just so he could fraudulently collect unemployment insurance payments.

         Montenegro Decl. ¶ 6.g. Henao did not refute Montenegro's account of the meeting in opposition to Hilton's motion for summary judgment.

         On July 29, 2016, Henao forwarded to Hilton HR a note from his doctor, dated July 26, 2016, indicating that Henao had, in fact, been released back to work and that he had no illness or disability limiting his ability to work. Montenegro Decl. ¶ 6.k., Ex. B. (7/26/16 Physician Note), Dkt. No. 18-5 in Civ. No. 16-00646. Although Henao was scheduled to work, he did not come to work or call in for the three-day period of August 3, 4, and 5, 2016. Montenegro Decl. ¶ 6.n. Montenegro states that Henao “became terminable after his third ‘no call/no show, ' [however], [Hilton] HR elected to defer any termination decision and, instead, wrote Mr. Henao a letter in an attempt to engage with [him].” Montenegro Decl. ¶ 6.o.

         Because no decision had been made regarding his employment status, Hilton offered to extend Henao's FMLA leave if he qualified or to provide him with non-FMLA leave, as both described in an August 9 letter and as referenced in a prior August 5 communication from Hilton HR-

If you need further FMLA leave, you may remain eligible for such leave and we will be happy to work with you to set up further time off work. Similarly, if you would like to take an non-FMLA leave for up to a month, we will be happy to grant such a request. The key is communication, we cannot figure out how to accommodate your needs if you do not communicate with us and simply fail to show up for work. As we informed you on August 5, 2016 you are free to return to work, free to extend your FMLA leave, or free to take another form of leave. The choice is yours and we will work with you to effectuate your decision.

Montenegro Decl. ¶ 6.p., Ex. C (8/9/16 Letter). Henao did not dispute that he received Montenegro's August 9 letter and that he never contacted Hilton HR to discuss his job status, as requested. See generally Henao Decl.; see also Ex. D, Henao's Response to First Request for Admissions ¶¶ 33-35, Dkt. No. 18-7 in Civ. No. 16-00646. According to Montenegro, no action has been taken against Henao, and he remains on Hilton's employee ledger on personal leave status. Montenegro Decl. ¶ 6.s.

         On August 10, 2016, Henao filed a Charge of Discrimination with the EEOC alleging age discrimination and retaliation by Hilton in violation of the ADEA. Henao Decl. ¶ 8, Ex. 3 (EEOC Charge), Dkt. No. 21-4 in Civ. No. 16-00646. Henao's Charge states that Hilton “did not provide a reason for my termination on July 4, 2016.” Ex. 3 at 1 (EEOC Charge).

         On June 6, 2017, Hilton moved for summary judgment, asserting that, because he is still employed by Hilton, Henao suffered no adverse employment action, an essential element of his HWPA claim. The Court held a hearing on Hilton's motion on September 15, 2017, and, on October 6, 2017, issued its Order granting summary judgment (“10/6/17 Order”[2]) and entered judgment in favor of Hilton. Dkt. Nos. 26 and 27 in Civ. No. 16-00646. On November 3, 2017, Henao filed a motion for reconsideration, asking the Court to “modify” its ruling to allow him to amend his complaint so that the case may proceed anew under a previously undisclosed theory of employer liability, and asserting for the first time that “Plaintiff understood the adverse employment action was a termination, however, now it has been found by the Court that the fact is that the adverse employment action was actually a suspension.” Dkt. No. 28-1 at 3, in Civ. No. 16-00646. Because Henao's assertions were false, and the motion for reconsideration otherwise lacked merit, the Court denied it on November 6, 2017, stating: “On summary judgment, neither Henao nor Hilton addressed whether Henao had ever been ‘suspended' by Hilton. . . . Nowhere in . . . the Court's summary judgment order did the Court address suspension or any concept remotely resembling a suspension.” Dkt. No. 29 at 2-3, in Civ. No. 16-00646.

         On November 6, 2017, Henao filed a notice of appeal in the First Case. Dkt. No. 30 in Civ. No. 16-00646. That appeal remains pending.

         II. Henao's Second ...

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